Four environmental advocacy groups said Thursday that they have found widespread fraud in the monitoring of water-pollution discharge by Kentucky's two largest strip-mine operators.
The groups have filed a notice of intent to sue International Coal Group of Knott County and Hazard and Frasure Creek Mining for more than 20,000 violations of the federal Clean Water Act over two years.
"I would expect that this kind of case would call for severe, immediate and robust action" and possibly a criminal investigation by state regulators, said Robert F. Kennedy Jr., president of the Waterkeeper Alliance.
ICG General Counsel Roger Nicholson called the allegations "scurrilous and dramatic." He said the company is reviewing the environmentalists' filing and said the company is committed to following the law.
"We believe the announced litigation by Appalachian Voices and the other anti-mining groups is a poorly disguised attack on the entire Kentucky coal industry that these activists wish to eliminate," Nicholson said.
Each of the violations could net a minimum penalty of $37,500, which would add up to about $750 million, Kennedy said. Any award from a lawsuit would go to the U.S. Treasury.
Under federal law, after a notice of intent to sue is filed, defendants have 60 days to come into compliance and state regulators have 60 days to take enforcement action. If those don't happen, a lawsuit can be filed.
"We have just learned today of these allegations, which we take seriously," said Dick Brown, spokesman for the state Energy and Environment Cabinet. "We will look further into the issues raised in the notice by these groups."
The state receives the quarterly reports and investigates any discharge levels that violate a company's permit. The company is asked to provide a written response plan to solve any discharge problems. If the company reports three or more similar violations in a 12-month period, the Department of Mine Reclamation and Enforcement should take action and inform the Division of Water of a possible Clean Water Act violation.
Kennedy said during a news conference Thursday that he has participated in 400 lawsuits in 25 years involving monthly discharge-monitoring reports, forms polluters self-report and file quarterly with state water-pollution regulators.
The four groups, in reviewing forms for Frasure Creek and ICG over 2007 and 2008, said they found instances of mineral discharges exceeding legal limits by up to 40 times, missing reports, forms signed and dated by supervisors before testing took place, forms copied and pasted from one quarter to the next, and testing dates scratched out and rewritten.
Discharge monitoring is important to the health of residents who use the water receiving the pollution, said Ted Withrow, a former state water-quality monitor and a member of Kentuckians for the Commonwealth. Manganese, for example, is being discharged into Kentucky streams at toxic levels and can cause learning disabilities in children and is fatal to aquatic life.
Regulatory agencies in Kentucky are not doing an adequate job of reviewing discharge-monitoring reports, said Donna Lisenby of Appalachian Voices, the North Carolina group that initiated the investigation.
Appalachian Voices partnered with Kentuckians for the Commonwealth, Waterkeepers Alliance and Kentucky Riverkeeper of Berea to make the filings.
Lisenby said in an interview that the group targeted Kentucky because its regulators and operators have not received the same level of third-party scrutiny as West Virginia, where litigation has amped up in an effort to end surface mining there.
On Wednesday, The Associated Press reported, West Virginia Gov. Joe Manchin, a Democrat running for the U.S. Senate, sued the Obama administration over the Environmental Protection Agency's policies on coal mining.
The EPA is scrutinizing Kentucky's regulatory agencies, The Courier-Journal in Louisville reported Thursday.
The agency has blocked 11 state-issued permits related to water discharge at coal mines over concerns they don't protect waterways from pollution. The EPA said state regulators failed to conduct analyses to determine whether the discharge proposals would violate water-quality standards.
The EPA sent objection letters to Kentucky officials citing the state's own assessment of poor water quality in the region where the permits are being sought.
Kentucky Department of Environmental Protection Commissioner Bruce Scott said the EPA's action could lead to the federal government taking control of permit approval and enforcement actions in the state.
The 11 permits are for mines in Floyd, Bell, Pike, Knott and Harlan counties.